Where the prosecution never charged defendant with a lesser offense, but the trial court instructed the jury on the lesser offense at trial, defendant can be retried for the lesser offense following reversal of greater offense for insufficient evidence. Goolsby was charged with arson of an inhabited structure (Pen. Code, § 451, subd. (a)). Erroneously believing that arson of property (Pen. Code, § 451, subd. (d)) was a lesser included offense of the charged crime, the trial court instructed the jury on this offense and that it could reach a verdict on the offense only if it acquitted defendant of the greater crime. Because the jury convicted the defendant of arson of an inhabited structure, it did not reach a verdict on the arson of property charge. The Court of Appeal reversed the conviction for insufficient evidence. The court also determined that retrial of the lesser related offense of arson of property was precluded by Penal Code section 654. The Supreme Court granted the prosecution’s petition for review, which only raised the issue of whether the offense of arson of property could be retried. Held: Reversed and remanded. In Kellett v. Superior Court (1966) 63 Cal.2d 822, section 654 was interpreted as requiring all offenses involving the same act to be prosecuted in a single proceeding. Here, the prosecution did not charge Goolsby with arson of property, but the trial court instructed the jury on that offense. Defense counsel made no objection to instruction on the lesser related offense and, as a result, impliedly consented to the jury’s consideration of it. Thus, Goolsby was effectively charged with arson of property. Under these circumstances, the lesser related offense of arson of property was prosecuted in a single proceeding with the arson of inhabited structure offense and section 654 does not bar retrial for the lesser offense because it remains unresolved and pending.

On remand, the Court of Appeal may consider whether double jeopardy precludes retrial. Because the Court of Appeal found that Kellett barred retrial, it did not resolve the double jeopardy issue raised in this case, which may be considered on remand.